Free Response to Cross Motion [Dispositive] - District Court of Federal Claims - federal

Case 1:01-cv-00201-VJW

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00001 1 IN THE UNITED STATES COURT OF FEDERAL CLAIMS 2 3 CAROL AND ROBERT TESTWUIDE, ) 4 et al., ) ) 5 Plaintiffs, ) ) 6 v. ) NO. 01-201L ) Judge Victor J. Wolski 7 THE UNITED STATES OF AMERICA, ) ) 8 Defendant. ) 9 10 11 DEPOSITION UPON ORAL EXAMINATION 12 OF NANCY DARLING TAKEN ON BEHALF OF THE DEFENDANT 13 14 Virginia Beach, Virginia 15 February 1, 2006 16 17 18 19 Appearances: 20 21 22 23 24 25 HOFHEIMER/FERREBEE, P.C. By: JACK E. FERREBEE, ESQUIRE Counsel for the Plaintiffs U. S. DEPARTMENT OF JUSTICE By: KELLE S. ACOCK, ESQUIRE And DEPARTMENT OF THE NAVY COMMANDER NAVY REGION ATLANTIC By: DOMINICK G. YACONO, ESQUIRE Counsel for the Defendant

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00004 1 understand a question, please ask me to rephrase the 2 question or repeat the question. 3 If at any point in time Mr. Ferrebee interjects, 4 please stop whatever you are saying and let Mr. Ferrebee 5 finish his thoughts, whatever he has to say for the record. 6 And then either he will instruct you to go ahead and answer 7 the question or not to answer the question. 8 A. 9 Q. Okay. If at any point in time you need to take a break

10 to use the restroom, to get a cup of water, please let me 11 know and we will take a break. 12 A. 13 Q. Thank you. Can you state your full name for the record and

14 your current home address. 15 A. My name is Nancy Darling. N-a-n-c-y

16 D-a-r-l-i-n-g. And my address is 909 Goldsboro Avenue, 17 Virginia Beach, Virginia 23451. 18 Q. 19 A. 20 Q. How long have you lived at that address? A little over 12 years. And prior to that, the 909 Goldsboro Avenue

21 address, where did you live? 22 A. I lived at 1644 Bay Point Drive in Virginia

23 Beach, and that is in the Great Neck area. 24 Q. How long were you living at the 1644 Bay Point

25 Drive address?

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00010 1 A.

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Yes. I have a contemporary house which is about

2 2,100 square feet. The property is about 50 by 100. And I 3 love my house. I love it very much. It's been perfect for 4 me in many ways. 5 Q. 6 A. 7 Q. Do you have a pool or anything in your back yard? No. My back yard is very small. Now, when you purchased that house in 1993, did

8 you use a realtor at that time? 9 A. 10 Q. 11 A. 12 Q. 13 A. 14 Q. 15 A. 16 Q. I did. Do you recall the name of the realtor? Gail Garrington. And she is affiliated with what? William E. Wood. Do you recall how much you paid for that home? $160,000. Now, when you purchased that home in 1993, did

17 you see an AICUZ map at that point? 18 A. 19 Q. No, I don't believe I did. Do you recall AICUZ ever being discussed or being

20 part of the real estate transaction? 21 A. 22 Q. Yes, because it was part of the disclosure. Do you recall what was the noise contour that

23 home or property was listed in? 24 A. I am almost certain but not positive -- I looked

25 for my contract but I couldn't find it -- that I was in the

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00013 1 the 70 to 75 decibel level, or you can't really recall? 2 A. I don't believe so. I know when the AICUZ maps

3 were redrawn it then put me into a higher -- the highest 4 category. And that was -- that happened after I moved into 5 Goldsboro Avenue. 6 Q. Okay. When the -- do you recall when the maps

7 were redrawn or anything you can associate as to when the 8 AICUZ map was redrawn? 9 A. 10 Q. I'm guessing around 1998, but I'm not sure. When you first moved into the home in 1993, can

11 you describe the impact of military jet noise on your daily 12 life experiences in terms of phone conversations? I'll 13 start off with that. 14 A. When I first moved in, I didn't have very much of

15 a problem with phone conversations. It was, if anything, it 16 was occasional. And I can't even recall way back then 17 having it be an issue at all that I could not conduct phone 18 conversations or watch TV. 19 Q. 20 A. 21 Q. Okay. That was my next question. How about TV? I don't remember it being an issue way back then. Did you have to raise the volume up, anything

22 like that? 23 A. Probably occasionally but not anything like

24 today. 25 Q. How about the ability to keep your windows open

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00014 1 during the daytime or at nighttime? 2 A. 3 Q. 4 A. 5 Q.

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When I first moved in I could, but not now. Back in 1993? Yes. How about stay outside and working out in your

6 yard or in the back yard? 7 A. 8 Q. It was not an issue back then. When did -- what we just described as your daily

9 life experiences, when do you believe that changed in terms 10 of time? 11 A. Significantly and intolerably at the time the

12 eight squadrons of Super Hornets were placed in Oceana. 13 Q. You mentioned Super Hornets. Can you associate a

14 time with this? 15 A. A couple of years ago I believe. Like two years

16 ago, whenever they came in. 17 Q. Super Hornets -- you mentioned the words, Super

18 Hornets. Super hornets is a variant of an F/A-18? 19 A. 20 Q. F/A 14 or 18. A Hornet is a variant of an F/A-18 E/F, which was

21 introduced in the Virginia Beach last summer? 22 A. 23 Q. 24 A. 25 Q. It was noisy prior to that. Okay. Let's -- you mentioned '98 and '99? Yes. Okay. An F/A-18 C/D, a Hornet type of jet was

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00015 1 introduced in that area from Cecil Field to Oceana. Is that 2 what you're referring to? 3 A. Most likely. I'm not going to say I can identify

4 jet planes, but I can identify noise. 5 Q. So you are saying somewhere in the 1998/1999 time

6 frame is when -7 A. 8 Q. Things got louder. Prior to the arrival of the F-18 Cs and Ds, were

9 you aware that -- were you aware of the introduction of 10 those aircraft or the pending introduction of aircraft into 11 the area? 12 A. Are you talking about the 8 squadrons that came

13 recently? 14 Q. 15 A. Not -- the Cs and Ds, not the recent ones? Was I aware that they were talking about that

16 they were coming? 17 Q. 18 A. 19 Q. 20 A. 21 Q. Yes. Yes, I certainly was. How were you aware of that? Newspaper, TV, basically. I kept up with it. Did you attend any of the public hearings, the

22 scope or EPA hearings that are required under the National 23 Policy Act? 24 A. 25 Q. Yes, I did. Did you provide any type of public comment?

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00016 1 A. 2 Q. 3 A. 4 Q. Yes, did. In writing or verbally? Both.

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Can you just briefly provide a quick summary of

5 what your comments were back at that time? 6 A. Yes. My comments were how the negative impact

7 the loud noise had on my life. My concern of loss of 8 hearing for myself and people who, young children especially 9 who would visit me, the fact that I could not keep my 10 windows open. The fact that I could not have a telephone 11 conversation, and that I conducted business outside of my 12 house and that was extremely difficult to manage. How it 13 was virtually impossible to be outside when the jets were 14 flying to do either gardening, to do reading on my front 15 porch, to entertain people on my back patio. Just can't do 16 it when the jets are flying. 17 Q. You mentioned the way you just described it was

18 -- again, back at the public hearing time, so we're talking 19 about 1996, 1997 time frame? 20 A. No. I'm sorry. We're -- I'm talking about the

21 public hearings that were held before the 8 squadrons of 22 Super Hornets came here. It wasn't that long ago. It was a 23 few years ago. I didn't go to any meetings before that. 24 Q. Did you attend a Navy public scoping hearing in

25 the years 1996 or 1997?

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00022 1 are being able -- their ability to sell or how long they 2 have been on the market? 3 A. I can't say I've followed the market that

4 closely, even in my area. I believe that the homes have 5 appreciated. I don't think that they have appreciated 6 nearly as much as other homes in Virginia Beach have. I 7 clearly don't believe that. In other words, if I had to 8 move out of my house now because of the noise, I don't think 9 I could get a comparable house in another area of Virginia 10 Beach for that same price. I would pay a lot more. 11 Q. Are one of the factors, at least in that

12 Shadowlawn area, is the proximity you can actually walk to 13 the beach? 14 A. Exactly. Exactly. And if I did the same thing

15 on the north end, looked for the same exact house on the 16 north end, which is also assessable to the beach I believe I 17 would pay about twice as much. 18 Q. Is there a homeowners' or a civic association

19 associated with the Shadowlawn area? 20 A. 21 Q. 22 A. 23 Q. Yes. Have you attended any of those meetings at all? No. Has the issue of the jet noise from the aircraft

24 flying in and out of NAS Oceana ever been a topic of 25 discussion or a topic of a meeting for the civic league

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00025 1 think they aren't flying. But I have heard them flying at 2 2 a.m. I can't swear that I have heard them after that. And 3 I have heard them start flying as early as 6 a.m., but it 4 always varies. 5 Q. In terms of estimating the altitude of the jets

6 that are flying in the vicinity of your home, can you 7 estimate what that's about? 8 A. I can't in any measurement, except that I can say

9 when I'm up in my bedroom, even with the windows closed 10 sometimes it sounds like they are going to come through my 11 window. They fly very close over my house, just over the 12 tree line. Now, I couldn't estimate that in feet. 13 Q. Are the planes -- are the jets always directly

14 overflying your home? 15 A. No. Sometimes they are. Sometimes they are a

16 little over to the left. Sometimes they are over to the 17 right. 18 Q. Have you observed what pattern the planes are

19 flying in and around your home? Are they flying in a 20 straight line? Are they circling? Have you noticed what 21 kind of patter -22 A. I don't believe they are circling. They seem to

23 be taking off and going to some destination and then coming 24 back in. They may swerve a little when -- after they pass 25 my home, but I don't know. I wouldn't say they are

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00026 1 circling. 2 Q.

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Going back to, as you said, things started to

3 change in terms of the noise environment starting in 1988, 4 1999? 5 A. 6 Q. Yes. Let's -- from that time up to the present has the

7 noise -- has the frequency of the noise, or what you just 8 described, has it varied? Has it been somewhat up and down? 9 Sometimes it's really noisy. Sometimes there's a lull in 10 terms of one year to the next year. Are you talking 11 about -12 A. Yes. Yes. Certainly. The fact that when the

13 ships are deployed, the aircraft carriers, it gets less and 14 less frequent. When they are all here and they are all 15 practicing, it increases again. 16 Q. 17 A. 18 Q. So you are saying it's episodic? Absolutely. In terms of -- are you currently a plaintiff in

19 this current litigation against the government? 20 A. 21 Q. Yes, I am. Do you believe that the noise that is emanating

22 from military jets that are operating in and out of Oceana 23 has had an impact in terms of a monetary impact on the value 24 of your current home? 25 A. Yes, I do.

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00027 1 Q. 2 A. Why is that?

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Well, as I said before, I believe that homes in

3 other areas of Virginia Beach that are equal to mine in type 4 of housing, square footage and other amenities, will sell 5 for a great deal more money because they are not affected by 6 the loud jet noise. 7 I also believe that if I ever sat down with a 8 potential owner or a potential buyer and explained to them 9 what the life-style was in my house, I wouldn't have a buyer 10 at all. Nobody would subject themselves to this willingly. 11 Q. Have you seen homes for sale -- basically, have

12 you seen homes for resale in your neighborhood in the block? 13 A. 14 Q. Yes, I have. Have you noticed how long those homes are on the

15 market? 16 A. No, I haven't. I have noticed in my particular

17 little area that a lot of people have kind of, within the 18 neighborhood, switched houses. Like they went from one to 19 another. People in my area. But, no, I don't know that 20 they stay on the market any longer. I just am not so sure 21 that willing buyers are apprised of the situation. 22 Q. Do you know anything about the school district

23 for that Shadowlawn neighborhood? Is it a very good school 24 district, average? 25 A. Oh, I think it's excellent. They have a

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00028 1 beautiful new middle school. My children are well out of 2 school, so that just doesn't affect me, but they are very 3 good schools. In my opinion. 4 Q. 5 in? 6 A. 7 Q. No. My children were grown and in college. Have you seen any academic studies, any reports Was that a decision back in 1993 when you moved

8 from the realtor board or anything that would associate -9 that would show the impact, or try to associate the impact 10 or show the value of what would happen to a home that is 11 subjected to jet noise? 12 A. 13 Q. I haven't seen anything like that. Have you taken any type of -- have you taken

14 pictures or videotape of any of the military jets that are 15 flying in or around your home? 16 A. No, I haven't. But I did buy a decibel meter to

17 calculate the decibels of the noise. 18 Q. 19 A. When did you do that? About, I would say, April of last year. April of

20 2005. 21 Q. In terms of the decibel meter do you keep a log

22 or a diary? 23 A. 24 Q. 25 day? I did. Have you continued to do that until the present

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00029 1 A. 2 Q. Yes. Occasionally.

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All times of day or night have you been taking

3 those recordings? 4 A. 5 Q. Yes. Yes. And I have the time. What have you noticed in terms of being the

6 highest decibel level? 7 A. 8 Q. 9 A. 10 Q. I believe it was about 123 decibels. Do you recall what time of day that was? No. I don't. I believe it was in the daytime. Do you have an opinion on whether the current

11 AICUZ noise disclosure that is part of now of the real 12 estate transactions in the City of Virginia Beach, do you 13 have an opinion as to whether that's adequate -- is it 14 adequate for a home buyer making a decision, whether that's 15 adequate or not? 16 A. I do have an opinion and I do not believe it's

17 adequate at all. 18 Q. 19 A. Why not? Because they put down the average jet noise as 75

20 plus. No realtor is going to tell a prospective buyer that 21 in actuality you are being subjected to decibels over 120, 22 which one incident of that can cause permanent hearing loss. 23 I don't -- that is not ever disclosed to anybody. 24 And giving an average daily decibel count of 75 25 plus is, I believe, a misrepresentation because it takes

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00031 1 right ear. And I haven't been tested in several years. I 2 have an appointment in March to see if I have any further 3 hearing loss. 4 Q. You believe that hearing loss in your right ear

5 is somewhat attributable to the jet noise? 6 A. 7 Q. 8 A. 9 Q. Yes, I do. Have you ever had your hearing tested? Yes. Okay. So you do -- you understand what the word

10 baseline means? 11 A. 12 Q. Yes. Do you have a baseline in terms of a medical

13 record, a base line for your hearing? 14 A. 15 Q. 16 A. I believe so. When was that done? Do you recall? About four years ago, I believe. I can't give

17 you an exact date. 18 Q. 19 A. So it's after 2000? It might have been -- yes. It might have been in

20 2000 or 2001, the first one. 21 Q. Do you have a hearing baseline -- to the best of

22 your knowledge -23 A. I saw an ear, nose, and throat specialist for my

24 ears, so I presume I have a baseline reading. 25 Q. Prior to 1998, to the best of your knowledge,

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00033 1 Q.

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Other than your current home address on

2 Goldsboro, are you familiar -- do you experience jet noise 3 at any other locations in or around Virginia Beach? 4 A. Occasionally if I visit a friend, but I don't

5 have too many friends that live in jet noise areas. I can't 6 say I never do. But certainly -- nothing at the same level 7 as at my house. It's always less. 8 Q. Do you have any intention right now of putting

9 your home up for sale on the market? 10 A. I had -- last year I was -- because of the jet

11 noise I was going to sell my house, but I had some personal 12 things occur in my life that I couldn't go forward with that 13 plan. 14 Q. 15 or -16 A. 17 Q. I certainly might. What are the factors why you would put the house What about in the pending future, like this year

18 on the market? 19 A. 20 Q. 21 A. 22 Q. 23 A. Why I would? Jet noise. Only jet noise. Would you stay still in the Virginia Beach area? I doubt it. And why not? Number one, I don't think I can afford it. I

24 can't afford to have the same thing I have here at this 25 house at another location because it costs more.

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00036 1 event, the noise event? 2 A.

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Actually, I did take an audio recording which I

3 brought to the public meeting, which I was told I was not 4 allowed to play. And I don't believe I have that tape any 5 more. 6 Q. 7 A. Okay. I was hoping that somebody -- somebody would

8 demonstrate the noise level. 9 Q. I'm going to read you some names and addresses

10 right now. I'm just going to ask you whether you are 11 familiar with the individual or the address? 12 A. 13 Q. 14 A. 15 Q. Okay. Ms. Eileen Coogan May at 620 Little Neck Road? No. Mr. and Mrs. William Capps -- Williams Capps, 409

16 Pallets Road? 17 A. 18 Q. 19 A. 20 Q. 21 A. 22 Q. No. Theodore Dingle, 912 Carolina Avenue? No. How far is Carolina Avenue from your home? I'd say about a quarter of a mile. Are the noise impacts pretty much in your opinion

23 -- noise impacts from military jets from your -- that you 24 experience from your home, would they be pretty much similar 25 you think to Carolina Avenue?

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